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Summer of Transparency: The Public’s Right to Know Prevails in Two Courts and the California Legislature

Open-government advocates have much to celebrate this summer, particularly in California where three EFF-involved efforts have resulted in conclusive victories for the public’s right to know what their government is up to.

In two lawsuits—one before the California Supreme Court and another before a federal judge in San Francisco—the courts rejected outlandish government secrecy claims. Last month, transparency activists and media outlets in California also successfully defeated legislation that would have gutted the state’s transparency laws.

Upheld: Public’s Right to Access Information, Regardless of its Electronic Format

In early July, the California Supreme Court unanimously upheld (pdf) the public’s right to access public records maintained by the government, regardless of the electronic format in which they are stored.

At issue in Sierra Club v. County of Orange, which we blogged about previously here, was Orange County’s GIS-compatible parcel database—a collection of public-property information, formatted for the creation of maps that scientists, journalists and public interest organizations, like Sierra Club, use to present data in new and illuminating ways.

Orange County conceded that the information that comprised the database was public information that must be disclosed in paper format. But county officials balked at disclosure of the digitized information when it was stored in a GIS-compatible format. The county argued that information in the database was “computer software,” and therefore exempt from disclosure under the California Public Records Act (CPRA).

Our amicus brief argued that the government’s interpretation would have created a treacherous loophole. If otherwise public information could become “computer software,” simply by virtue of being converted into a digital format, then CPRA would essentially be eviscerated in the digital age. California’s highest court recognized as much, rejecting the government’s argument and noting that:

As a practical matter, such an interpretation would tend to make the mandate in [the Public Records Act] that “[t]he agency shall make the information available in any electronic format in which it holds the information" a virtual nullity or, at least, a limited exception rather than a general rule ... Accordingly, we believe the better view, based on statutory text and context, is that GIS-formatted databases are not covered by the statutory exclusion of computer software[.]

The decision reaffirms the constitutional right of Californians to access government documents, regardless of the document’s filename extension.

American companies seeking to export surveillance equipment to countries with problematic human-rights records will no longer be able to rely on the U.S. government to keep their applications secret.

A federal judge has ordered (pdf) the U.S. Department of Commerce to release all applications for “surreptitious listening equipment” submitted since 2006 in response to a Freedom of Information Act (FOIA) lawsuit EFF filed last summer. This category of regulated technology is used primarily for wiretapping and, in the past, the Commerce Department has allowed companies to ship the equipment to countries such as Egypt, the United Arab Emirates, and Syria.

In response to EFF’s suit, the government made a staggering assertion: a law that expired over a decade ago gave the government the authority to hide the records from public scrutiny. While the argument that dead laws are enforceable may seem patently absurd, two federal appellate courts previously had agreed with the government.

But the federal court in San Francisco—where EFF is based—is not bound by those opinions. In a July 12 decision, the federal judge here rejected the government’s attempt to rely on the lapsed statute. The decision requires the government to produce the applications we requested by Aug. 9, 2013. The government has already appealed the decision, but we look forward to continuing the fight for the public’s right to know in the Court of Appeals.

Both cases highlight an important trend: the judiciary is pushing back on extreme secrecy claims made by the executive branches of the government. We’re happy the courts saw the government’s claims for what they really were: bald attempts to shield from the public vital information in the government’s possession.

Vetoed: California Legislature Makes Transparency U-Turn

As the June 29 deadline for passing the state budget approached, the California legislature approved a savings measure that would have made the state’s transparency laws optional for local governments. Lawmakers claimed that the 11th-hour bill would take California off the hook for reimbursing municipalities for complying with the law.

Californians Aware, the First Amendment Coalition, EFF and dozens of media organizations and good-government groups sprung into action, sending letters and publishing editorials demanding Governor Jerry Brown veto the bill. Within days, the legislature reversed course, passed a new measure without the CPRA-gutting language, and the governor vetoed the previous version.